Apple patent infringement case in UK sees ‘tightening noose’

Ericsson’s 5G Apple patent infringement claim has now reached its sixth country, with the latest submission to the UK High Court. The Swedish telecom company is trying to get import bans on iPhones in the US and elsewhere as it increases pressure to Apple to reach an arrangement.

A patent expert says “the noose is tightening” for the Cupertino company as it becomes increasingly likely that Ericsson sooner or later will manage to get an iPhone ban…

Background

Ericsson accuses Apple of violating its patents related to the 5G chips used in current iPhones. That’s because Apple used to pay royalties to use the proprietary technology, but then didn’t renew the licenses when they expired. It is believed that Apple hoped to get a better deal on the 5G licenses, having previously agreed on proprietary 2G, 3G and 4G technology.

Things got heated when Apple sued Ericsson in December last year, alleging that the Swedish company had violated the FRAND terms. This is international law that requires standard essential patents (technology without which it is impossible to make a smartphone) on terms that are fair, reasonable and non-discriminatory. In other words, Apple claimed that Ericsson was charging too much for its patent license fees.

Ericsson, in turn, accused Apple of wasting judicial resources by forcing unnecessary lawsuits on two fronts† Apple hit back by filing an unrelated patent infringement claim against Ericsson.

Both companies are trying to get import bans on products from the other: the iPhone on one side and a mobile base station on the other.

Since there is no dispute that Ericsson owns the patents and Apple is currently infringing them by failing to renew its licenses, experts say the Swedish company is likely to succeed in securing a ban on iPhone imports in one or more countries. .

Apple patent infringement case is dangerous

Ericsson has already sued Apple in at least five countries: the US, Germany, the Netherlands, Brazil and Colombia. Foss patents reports that the UK has now been added to the list.

UK court records show some of Ericsson v. Apple files: On June 6, Ericsson – represented by the law firm Taylor Wessing, which has offices in numerous European countries (and outside of Europe) – filed with the High Court of Justice for England & Wales […]

The British filings apparently came on the heels of the recent failure of a mediation effort in the Eastern District of Texas. While parties are free to submit additional files during mediation talks, they do not want to be seen as hostile actions at a time when everyone should be constructive.

Apple is going the same way with patents owned by a separate company, Optis — and the site’s Florian Mueller says the iPhone maker is playing a dangerous game.

As I noted in the Option In that context, there is significant risk to Apple that additional UK FRAND case law – resulting from Apple’s failure to negotiate a deal with the Optis/Unwired group – could complicate its defense against much larger patent holders. With Ericsson’s deposits, that risk is more apparent than before […]

Ericsson’s filings show Apple that the noose is tightening in multiple jurisdictions. At some point, the patent injunction hammer will come down somewhere.

Apple also jeopardizes App Store commissions

Both companies are fighting hard, and maybe dirty. For example, Apple justifies its App Store commissions in part because the store gives developers valuable intellectual property; in a US lawsuit, Ericsson is trying to force Apple to disclose details of this IP address (probably as opposed to Apple charging developers the fee it refuses to pay Ericsson). Any weaknesses identified in Apple’s IP claims could add to the antitrust pressures related to the App Store.

Apple claims to have IP essential to iOS app creation, and wants 27% of its revenue from in-app purchases (with exceptions pertaining to only a minuscule portion of the relevant royalty base), even if it isn’t processes payments (in which case it wants another 3%, which is roughly what third-party payment processors charge). In the Ericsson v. Apple FRAND disputes in the Eastern District of Texas, Apple doesn’t want Ericsson to discover certain App Store issues† Ericsson has already filed two motions and on the first, Judge Gilstrap has scheduled a hearing for early July.

Apple will almost certainly wind things up at some point — it’s just too vulnerable to let courts decide — but hopes it can drag out as long as possible and file counterclaims so it can negotiate better terms.

Photo: JESshootsUnsplash

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